Issue 4 (18) 2012

Shepenko Legal regulation of countervailing measures reviews in USA

Legal regulation of countervailing measures reviews in USA

M.R. Shepenko

Moscow State Institute of International Relations (University) of MFA of Russia

76, Prospect Vernadskogo, Moscow, 119454

E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.

To protect domestic industry against injury caused by subsidized imports countervailing measures can be established. They are imposed under Department of Commerce order. Interested party has a right to request review of order that establishes countervailing measures to be carried out in administrative or judicial procedure. Both procedures are formed by its’ types which are characterized in a varying features of such order review procedure.

Periodic review, review for new exporters and producers, review based on changed circumstances and five-year review are types of administrative reviews.

Periodic review of amount of duty according to American retrospective system is a procedural mechanism of factual countervailing duty amount assessment. At least once during each 12-month period beginning on the date of publication of a countervailing duty order the administering authority, if a request for such a review has been received and after publication of notice of such review in the Federal Register shall review and determine the amount of any net countervailing subsidy and publish in the Federal Register the results of such review, together with notice of any duty to be assessed, estimated duty to be deposited, or investigation to be resumed.

Review for new exporters and producers is carried out if interested party is able to prove that it has not been exporting the merchandise that come within the order.

Review based on changed circumstances is carried out on any interested party request which provides data indicating on necessity of such review conduction but not less than 24 months after the date of publication of notice of that determination or order.

Five-year review is carried out once in 5 years to determine if the cancelation of order lead to negative results as continuation of subsidization or its’ increase that subsequently lead to national economy injury.

During reviews individual rates of duty for exporters and producers are established, necessity of using established rate of duty and the issue of possible consequences of order cancelation are considered depending on the type of review.

Judicial review can be divided into national which embodies 3 degree of jurisdiction (U.S. Court of International Trade, U.S. Court of Appeals for the Federal Circuit and U.S. Supreme Court) and supranational (bi-national panel review in NAFTA). Bi-national panel comprise five independent and qualified experts the majority of whom are lawyers. Each party is to select two panel members and the fifth is to be agreed upon or failing agreement nominated by a party chosen by lot that is governed by NAFTA Annex 1901.2. Their reports are binding upon the parties. Preferably they are to be executed via non-implementation or removal of the unlawful measures. In case of failure to comply with report the complaining party may exercise trade sanctions against the recalcitrant party.

Keywords: administrative review; judicial review; countervailing measures; countervailing investigation; periodic review; review for new exporters and producers; review based on changed circumstances; review based on changed circumstances

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